Abdul Rehman Sheikh Hussein Vs. Ravindra Vassant Quencro and Others - Court Judgment

1. Heard Mr. Lotlikar, learned Senior Counsel appearing on behalf of the appellants and Mr. Ramani, learned Counsel appearing on behalf of the respondent no.1.

2. This Second Appeal is directed against the judgment and decree dated 02/08/2007 passed by the learned District Judge-I, North Goa Panaji (First Appellate Court, for short) in Regular Civil Appeal No. 64 of 2006, thereby confirming the Judgment and decree dated 31/12/2005 passed by the learned Civil Judge, Junior Division, Ponda, Goa (Trial Court, for short) in Regular Civil Suit No. 43/2004/D.

3. Respondent no.1 was the plaintiff whereas the appellants and the respondents no. 2 and 3 were the defendants. The parties shall hereinafter be referred to as per their status in the said suit.

4. The plaintiff had filed the said suit for permanent injunction, mandatory injunction and demolition of the illegal construction. Originally, the suit was filed only against one Sheikh Lukruddin Sheikh Mohammed as sole defendant to restrain him, his family members etc. from causing interference with, or encroachments in or from planting and/or including any works of construction and/or causing any damage to said plot no. 3 or any portion thereof and for a mandatory injunction directing the defendant to demolish the illegal construction and/or to restore the land to its original position. It was the case of the plaintiff that he was the owner of the property bearing survey no. 12/1 designated as plot no. 3 situated at Bhoma village of Ponda, Goa. It was further alleged that the defendant had made illegal construction around 1980 as shown on the plan in the said property without the consent of the plaintiff's father and the said defendant pleaded with the father of the plaintiff that he would purchase the said plot and to bear with the illegal construction, till then. However, during the second week of January, 2003, the defendant told the plaintiff that he is not interested in purchasing the said plot due to which the plaintiff sent a legal notice to him to remove illegal encroachments. The notice was returned unserved. Hence, the plaintiff filed the suit against the defendant.

5. The defendant, Sheikh Lukruddin Sheikh Mohammed could not be served. His name was then replaced by the name Sheikh Rukzudin Sheikh Mohammed alias Sheikh Rukzudin Mohammed as defendant no. 1 and the defendants no. 2, 3 and 4 were added to the suit. Only the defendants no. 3 and 4 filed written statement.

6. The defendants no. 3 and 4 specifically pleaded that the plaint did not disclose any cause of action against them. They alleged that they are owners by adverse possession of a distinct portion of the property bearing survey no. 12/1 and that the said distinct portion was transferred by late father of the plaintiff during his life time to the defendants no. 1 and 3 about 25 years back and they were permitted to construct a shed in the said distinct portion for running a poultry and/or for industrial purpose. They further alleged that the license granted for construction was coupled with transfer of said distinct portion and acting upon the said license they constructed the said shed which was of permanent nature for which they incurred huge expenditure and, therefore, the license was irrevocable under Section 60 of the Indian Easements Act. The defendants no. 3 and 4 also pleaded that the suit was barred by limitation.

7. The learned trial Court framed the following issues:

1. Does plaintiff proves that he is the owner of the property designated as plot no. 3 and surveyed under survey no. 12/1 of Village Bhoma?

2. Does plaintiff prove that defendant undertook illegal construction and pleaded to bear the same till he purchase plot no. 3?

3. Does plaintiff proves that there is cause of action to file this suit?

4. Does defendants 2 and 3 proves that they are owners of distinct portion of survey no. 12/1 including the permanent structure by adverse possession?

5. What relief? What Order?

8. The plaintiff examined himself as PW1 and one Kiran Naik, an engineer as PW2 whereas the defendants no. 3 and 4 examined the defendant no. 3 as DW1 and one Shaikh Usman as DW2.

9. Upon consideration of the material on record, the learned Trial Court answered the issues no. 1, 2 and 3 in the affirmative and issue no. 4 in the negative and thus decreed the suit as prayed for.

10. Aggrieved by the Judgment and Decree of the Trial Court, the defendants no. 3 and 4 filed Regular Civil Appeal No. 64 of 2006. The learned First Appellate Court framed the following points for determination:-

1. Have the appellants proved that the suit had been filed beyond limitation?

2. Had the defendants proved that the plaintiff's late father had granted them the license for constructing the shed in the distinct portion of survey no. 12/1?

3. Had the defendants proved that the license granted to them is irrevocable, in terms of Sec. 60 of the Indian Easements Act?

4. Has the learned Civil Judge erred in holding that the construction of the defendants in plot no. 3, was an illegal construction?

5. Had the learned Civil Judge erred in holding that the defendants had failed to prove that they have acquired title by adverse possession?

11. The First Appellate Court answered all the points in the negative and dismissed the appeal thereby confirming the judgment and decree of the Trial Court.

12. The defendants no. 3 and 4, therefore, have filed the present Second Appeal which has been admitted on the following substantial questions of law:

(i) Whether the plaint filed by respondent no.1 was liable to be rejected on the ground that the same did not disclose any cause of action against the appellants/defendants?

(ii) Whether the suit for mandatory injunction filed by respondent no. 1 was barred by limitation?

13. Mr. Lotlikar, learned Senior Counsel appearing on behalf of the defendants no. 3 and 4 fairly conceded that the suit for mandatory injunction was not barred by limitation. Therefore, the learned Senior Counsel did not press for the substantial question no. (ii).

14. Learned Counsel submitted that the entire plaint disclosed cause of action only against the defendant no.1. He pointed out that though by way of amendment the defendants no. 2, 3 and 4 were added as parties and prayer clauses were amended to apply to all the defendants, however the pleadings were not at all amended and, therefore, the said pleadings did not disclose any cause of action as against the defendants no. 3 and 4. He, therefore, submitted that the substantial question at serial no. (i) should be answered in the affirmative and, therefore, the impugned judgment and decree of the First Appellate Court as well as of the Trial Court should be set aside and the suit should be dismissed.

15. On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiff submitted that the Trial Court had framed the issue as to whether the plaintiff proves that there is cause of action to file the suit and the said issue was answered in the affirmative but the said finding was not seriously challenged before the First Appellate Court nor was it argued before the First Appellate Court that there was no cause of action against the other defendants and, therefore, the same cannot now be raised in the Second Appeal. He further submitted that the object of pleadings is for the parties to know as to what case they should meet. He submitted that in the present case the parties as well as the learned lower Courts knew as to what was the case of both the parties. He pointed out that in their Written Statement, the defendants no. 3 and 4 had spoken about the defendants no. 1 and 3. He, therefore, submitted that no prejudice is caused to the defendants no. 3 and 4 by not amending the paragraphs of the plaint except the cause title and the prayer clauses. He therefore urged that the substantial question no. 1 should be answered in the negative.

16. I have gone through the entire material on record. I have also considered the submissions made by the learned Counsel on behalf of the parties.

17. A perusal of the plaint reveals that the allegations are only against the defendant no.1 and they are specifically to the effect that he made illegal construction in their plot without the consent of the plaintiff's father and that he had pleaded with the father of the plaintiff to bear with the said construction till he purchases the said plot. The plaint further reveals that during second week of January, 2003, the defendant no. 1 disclosed that he was not interested in purchasing the plot. Accordingly, a notice was issued by the plaintiff only to Sheikh Lukruddin Sheikh Mohammed, the original defendant. By way of amendment, the plaintiff only amended the cause title to add the defendants no. 2, 3 and 4 and the prayer clauses, However, there were no changes made in the plaint, so as to relate any averments made therein to any particular defendant. In fact, all the averments in the plaint were relating to the original defendant i.e. Sheikh Lukruddin Sheikh Mohammed, whose name was subsequently substituted by the name of Sheikh Rukzudin Sheikh Mohammed alias Sheikh Rukzudin Mohammed. By no stretch of imagination, it can be said that all the averments which were in the plaint related to the defendants no. 3 and 4. It is clear that the plaint does not disclose any cause of action as against the defendants no. 3 and 4 and, therefore, the suit could not have been decreed as against the defendants no. 3 and 4. In the appeal filed before the First Appellate Court, the defendants no. 3 and 4 had taken a ground that the Trial Judge ought not to have accepted the allegations made against the defendant no. 1 as having been made against the other defendants. The substantial question of law at serial no. (i) is therefore answered in the affirmative i.e. in favour of defendants no. 3 and 4.

18. The defendants no. 1 and 2 had not contested the suit and had not even filed any written statement. The suit had proceeded ex-parte against the defendants no. 1 and 2. Even in Regular Civil Appeal no. 64/2006, the said defendants no. 1 and 2 had chosen to remain absent. The said defendants no. 1 and 2 have not challenged the judgment and decree passed by the Trial Court. In such circumstances, the judgment and decree of the lower Court is bound to be set aside only as against the defendants no. 3 and 4.

19. In the result, the Second Appeal is partly allowed.

(a) The impugned judgment and decree dated 02/08/2007 passed by the First Appellate Court in Regular Civil Appeal No. 64 of 2006 and the Judgment and Decree dated 31/12/2005 passed by the Trial Court in Regular Civil Suit No. 43 of 2004 are quashed and set aside qua the defendants no. 3 and 4.